On July 10, 2014, five U.S. citizens who had their information entered into counterterrorism databases and were subjected to law enforcement scrutiny and interrogation, filed suit against the Department of Justice ("DOJ") and the Program Manager of the Information Sharing Environment ("PM-ISE") ...
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On July 10, 2014, five U.S. citizens who had their information entered into counterterrorism databases and were subjected to law enforcement scrutiny and interrogation, filed suit against the Department of Justice ("DOJ") and the Program Manager of the Information Sharing Environment ("PM-ISE"). Plaintiffs challenged the legality of a domestic surveillance program, and sought declaratory and injunctive relief. They brought suit in the U.S. District Court for the Northern District of California under the Administrative Procedure Act ("APA") and the Declaratory Judgment Act. Plaintiffs were represented by the American Civil Liberties Union ("ACLU"), the ACLU of California, and Asian Americans Advancing Justice-Asian Law Caucus.

Through the National Suspicious Activity Reporting Initiatives ("NSI"), the federal government encourages state and local law enforcement agencies and private actors to collect and report information that has a potential nexus to terrorism through Special Activity Reports ("SARs"). Plaintiffs were reported as having engaged in "suspicious activities" under DOJ and ISE standards when engaged in actions such as taking pictures, buying computers, and standing in a train station. As a consequence of being reported through SARs, plaintiffs were subject to law enforcement scrutiny and interrogation.

Plaintiffs claimed that the DOJ and ISE standards for SARs are invalid because they violate federal statutory requirements that agencies observe certain procedures and not act in an arbitrary or capricious manner. Specifically, plaintiffs contended that defendants' standards conflict with a DOJ regulation (28 C.F.R. § 23) that prohibits the collection, maintenance, and dissemination of criminal intelligence information unless there is reasonable suspicion of criminal activity, and that defendants' standards were not promulgated in accordance with the notice and comment requirements of the APA.

The government moved to dismiss the case on October 16, 2014. First, defendants claimed that plaintiffs lacked standing because 1) they had not alleged a nexus between their injuries and the guidance provided by defendants, and 2) their allegations of future law enforcement scrutiny were too speculative to satisfy the requirement of imminent future harm to warrant prospective relief. Second, defendants claimed that plaintiffs failed to plead an action that could proceed under the APA because alternative remedies were available to plaintiffs and the guidance provided by defendants in connection with the NSI did not create binding legal obligations remediable under the APA. Finally, defendants argued that plaintiffs' claims were improperly joined and should be severed. Plaintiffs filed a response to the motion to dismiss on November 20, 2014.

As of November 29, 2014, the District Court (Judge Richard Seeborg) has yet to rule on the motion.